Fertility Law

Whether you are seeking the assistance of fertility treatment, egg, sperm, or embryo donation, or surrogacy, or if you are considering being a surrogate, or are adopting a child, we can help. We offer the following services: 

• Advice regarding, drafting, and negotiating egg, sperm, or embryo donor agreements Read More
• Advice regarding, drafting, and negotiating surrogacy agreements Read More
• Adoptions Read More
• Applications for legal parentage Read More

Our lawyers believe that the desire to care for a child, whether biologically connected to you or not, is an exceptionally valuable contribution to society. Likewise, we believe that the act of carrying a child to help another family grow is an extraordinary act, deserving of admiration, but also protection. We are

• Committed to a high standard of work quality,
• Knowledgeable about this unique and relatively new area of law,
• Passionate about helping you to build your family of choice, and
• Committed to providing a welcoming and affirming environment for all types of family arrangements.

We would love to help you with your family goals.

If you require a consultation with a lawyer or are ready to retain a lawyer, please complete our intake form by clicking here. A staff member will contact you within one or two days.

Egg, Sperm, or Embryo Donor Agreements

Donor agreements are important for setting out the intentions, rights, and obligations of all individuals involved in the process of bringing a child into the world. We will meet with you to discuss your needs, prepare a tailor-made agreement, and walk you through its terms to ensure you understand it and are comfortable with it. Alternatively, we can review a pre-prepared agreement for you and provide advice on its contents.

The Assisted Human Reproduction Act governs donation of human reproductive material in Canada. It is illegal to pay for human reproductive material, however an intended parent can reimburse donors for reasonable expenses incurred in relation to the egg, sperm, or embryo donation. 

A donor can be a friend or family member, or can be found through a fertility clinic. Donors can be known or anonymous. Where you use the services of a fertility clinic, an agreement will likely be required and is strongly recommended.

A list of Canadian fertility clinics can be found here:
https://www.infertilitynetwork.org/fertility_clinics_cda

https://fertilitymatch.ca/fertility-clinics-canada/

Surrogacy Agreements

What is Surrogacy?

Surrogacy, the act of carrying a child with the intention of giving it to intended parents at birth, is legal in Canada. However, there are limitations around the kind of compensation that can be provided to a surrogate. The Assisted Human Reproduction Act governs surrogacy in Canada.

A surrogate can be a friend or family member, or can be found through a Canadian agency. Where you use the services of an agency or clinic, an agreement will likely be required and is strongly recommended.

Why are Surrogacy Agreements Important?

Surrogacy agreements are important for setting out the intentions, rights, and obligations of all individuals involved in the process of bringing a child into the world. They are also important tools for ensuring that individuals choosing to act as surrogates are protected.  A surrogacy agreement can create some specificity and predictability around the kinds of expenses that will and will not be covered, and the process for reimbursement.

We will meet with you to discuss your needs, prepare a tailor-made agreement, and walk you through its terms to ensure you understand it and are comfortable with it. Alternatively, we can review a pre-prepared agreement for you and provide advice on its contents.

Can Surrogates be Compensated?

In general, intended parents cannot pay a surrogate in exchange for carrying the child, rather they can only compensate her for reasonable expenses incurred in relation to the surrogacy. This could include travel costs, healthcare costs not covered, loss of employment income for any period that she cannot work, or cost of the care of the surrogate’s dependents while she is unable.

How Does Someone Become a Legal Parent to a Child Born by Surrogacy?

Following the surrogacy, we can assist you to obtain legal parentage of the child either through a parentage application or by adoption.

Adoption

Our lawyers are experienced in handling the adoption process and can assist you with compiling the required paperwork and to submit your adoption application. In general, the services of a lawyer are only needed for private-direct adoptions or step-parent or relative adoptions. Adoptions through an agency or through Child and Family Services are generally facilitated by the assistance of social workers.

A list of licensed Alberta adoption agencies can be found here: https://www.alberta.ca/private-adoption.aspx#agencies

What is a Private-Direct Adoption?

A private-direct adoption or direct placement adoption is where the birth family makes a private agreement with an adoptive family to place a child with the adoptive family, without an intermediary such as agency or the government.

Will I Need to Obtain a Home Study Report?

A home study is not automatically required. However, once your application is submitted to the courts, the reviewing Justice may request that one be completed.

Where a Home Study is required, it can cost a few thousand dollars.

What Documentation Do I Need for the Application?

A complete list of required forms can be found here, beginning at page 6: https://cfr.forms.gov.ab.ca/Form/ADOP0008.pdf

The Alberta Government provides an overview of the process here: https://www.alberta.ca/private-adoption.aspx#agencies

Can Single Individuals Adopt a Child?

Yes! There is no requirement for two parents to complete an adoption.  However, more than two parents cannot adopt a child in Alberta.

Legal Parentage

At the outset of a parenting relationship, our lawyers can assist you in preparing parentage agreements to ensure clarity and predictability of the parent-child relationships. At any time in a child’s life, if you find yourself in a situation without clarity around the parenting relationship, we can also assist you to resolve these issues or bring a court application for a declaration of parentage.

Where a child is born through assisted reproductive technology, such as by in vitro fertilization, egg or sperm donation, or by a surrogate, Alberta legislation establishes who will be considered the legal parents of that child. In general, the legislation uses an “intention-based” model for determining who a child’s legal parents are. Therefore, we strongly recommend that parties who will be relying on assisted reproduction or surrogacy to have a child enter into a legal parentage agreement prior to that child’s birth to clearly establish the intentions of everyone involved.

Where there is a dispute as to who the parent of a child is, certain individuals have the ability to apply to a court for a declaration that a person is, or is not, a parent.

Who are the legal parents of children born by assisted reproductive technology under Alberta legislation?

In Alberta, the legal parents of a child as established by legislation are (See Part 1 of the Family Law Act, RSA 2003, Chapter F-4.5):

• Where the child is conceived by sexual intercourse, the legal parents are the birth mother and biological father,
• In the case of a couple who require the assistance of an egg or sperm donor and/or in vitro fertilization to conceive, but do not require the assistance of a surrogate to carry the child:
  • Where the child is conceived through sperm donation (the provision of sperm with no intention to be a parent) and the embryo is carried by the intended mother, the parents are the birth mother and her spouse or adult interdependent partner*, where that partner consented to the birth of the child through assisted reproduction at the time of conception.
  • Where the child is conceived through egg donation (the provision of an egg with no intention to be a parent) and the embryo is carried by the intended mother, the parents are the birth mother and the biological father.
  • In the case of in vitro fertilization with the reproductive material of both intended parents, the parents are the birth mother and the biological father.

Who are the legal parents of children born by surrogacy under Alberta legislation?

Where a child is carried by a surrogate, the intended parents must make a court application for a declaration of parentage.

• The court application for declaration of parentage of a child born to a surrogate can be made by:
  • the surrogate,
  • the individual(s) who provided an egg or sperm with the intention of parenting the child, or
  • the spouse or adult interdependent partner* of the individual who provided an egg or sperm where the corresponding sperm or egg was provided by a donor not intending to parent the child.
• In other words, to make a parentage application, at least one of the intended parents must have provided an egg or sperm, and the second intended parent must be the spouse or adult interdependent partner* of that person.
• Where the intended parents’ reproductive material was not used, the intended parents must instead make an adoption application.

*Adult Interdependent Partner is a term used by Alberta legislation to refer to what we commonly understand to be common law couples. However, its definition is broader, and applies to two individuals who are living in a relationship of interdependence for 3 years or more, or individuals who are living in a relationship of interdependence who have a child together by birth or adoption.

Does the law recognize non-traditional family arrangements?

A child can legally have one or two parents of any gender under Alberta’s legislation. However, Alberta’s legislation prohibits more than two parents from obtaining a legal declaration of parentage. Multiple intended parent families could rely on guardianship, or may be able to achieve legal status through the adoption process, but we are not aware of any examples of this. 

Outside of Alberta, courts have legally recognized other forms of non-traditional family arrangements. For example, in Ontario in 2017, a platonic same-sex couple were declared legal parents, and in 2018, a Newfoundland court declared three individuals in a polyamorous relationship as legal parents of a child, despite a finding that the legislation contemplated only two parents. Although there are no similar cases in Alberta, these families have paved the way for the possibility elsewhere in Canada.